Standing Committee F

[Mr. Joe Benton in the Chair]

Civil Contingencies Bill

Clause 18 - Meaning of ''emergency''

Amendment proposed [this day]: No. 91, in 
clause 18, page 11, line 36, leave out paragraph (d).—[Mr. Allan.] 
 Question again proposed, That the amendment be made.

Joe Benton: I remind the Committee that with this we are discussing the following amendments:
 No. 78, in 
clause 18, page 11, line 38, leave out paragraph (f). 
No. 93, in 
clause 18, page 12, line 4, leave out paragraph (b).

Fiona Mactaggart: It might reassure the Committee if I review the structure of the clause. For an event or situation to qualify as an emergency, it must threaten serious damage to human welfare and to the environment and the security of the United Kingdom, as listed in subsection (1). Subsection (2) gives comprehensive exemplars of things that are required in order for the damage to be considered serious. It is therefore not sufficient for something to fall within paragraphs (a) to (h) or within any subsections in other clauses: that something is pre-eminently required to qualify as causing serious damage to human welfare, to the environment or to the security of the United Kingdom. Bearing that point in mind might mitigate some of the concerns that hon. Members have expressed. Some of the examples that they have described would not qualify as an emergency because serious damage would not have occurred.

Richard Allan: The Under-Secretary's comments are helpful, and this is precisely what the amendments seek to clarify. The weakest interpretation is that something that may cause damage to property can also be defined as damaging human welfare. In other words, at what point would a Minister judge damage to property to be seriously detrimental to human welfare? Such a definition is difficult to arrive at. Incidents of death or injury are clearer, but we are trying to establish the threshold at which damage to property can be defined as being seriously detrimental to human welfare.

Fiona Mactaggart: Let me give an example, although examples are always full of risk because, as I said earlier, they involve speculation. Damage to an
 installation, such as a nuclear power station, might lead to further damage to human welfare—an example of damage to property at an initial stage creating a serious threat to human welfare. It is also important to recognise that the items listed in subsection (2) are deliberately designed to be comprehensive. They will overlap in many, if not most, situations.
 To achieve transparency, we have tried to list comprehensively all the situations that might constitute serious damage to human welfare, so that nothing is left out of this provision that could suddenly be deemed to create serious damage. That is why this approach is preferable to the more general approach taken in the Emergency Powers Act 1920, in which there was much room for ministerial discretion. In order to be accountable to Parliament, we are seeking to allow Parliament to be clear about the things that need to happen to qualify as constituting serious damage to human welfare. Serious damage to human welfare must also have its natural meaning. The combination of those two factors is designed to provide the transparency and accountability to Parliament that the hon. Gentleman rightly seeks, and to provide the security that the threshold for moving to the use of emergency powers is sufficiently high. We need to be confident of both of those things.

John Horam: I am grateful to the Under-Secretary for giving examples, as they help to elucidate the generalities of legislation. She will remember the ships that came across the Atlantic and the huge row last summer about whether they could be cleaned and dealt with at Hartlepool. From what she is saying, I guess that that case would not be included as an emergency, even though it could have led to contamination and environmental damage in the surrounding area.

Fiona Mactaggart: That episode was dealt with by existing legislation, so the use of emergency powers would not be contemplated. Apart from anything else, such a case would be dealt with by other parts of the triple lock and would fail to meet the necessity provision. I do not know enough about the nature of the threat that was on those ships, so it is not for me to speculate, but one part of the triple lock is that there needs to be a serious threat to human welfare. Action must be urgent and necessary, and in due proportion to the threat.
 There are a series of tests, which at each stage narrow the opportunity for using emergency powers as opposed to something else. Hon. Members are rightly keen for proper reassurances that the new provision is not a first stop when confronted with a situation that is difficult to deal with. It is a backstop. If the usual mechanisms at the Government's disposal are not sufficient because, for example, they cannot be deployed swiftly enough, the use of an emergency power could be considered if the event meets all the characteristics of the triple lock.

Oliver Heald: As the Under-Secretary knows, amendment No. 78 addresses, in part, the interrelationship between subsection (2)(e) and (h). Threatened
 disruption to health services, money, food, water, energy or fuel is covered under paragraphs (e) and (h). However, why would we want a situation involving an electronic or other system of communication, such as an internet virus or other communications disruption, covered unless it involved the disruption of one of the other things—supplies, money, food, the health system? In other words, what is the case for having
''disruption of an electronic or other system'' 
listed on its own as an emergency trigger?

Fiona Mactaggart: I have made it clear that our aim is for the list to be comprehensive. Subsection (2) contains a comprehensive list. Something can qualify as an emergency only if it includes one of the things on the list. It is necessary to be as inclusive as possible if one is also protecting the rights of Parliament by making it an ''only'' list.
 I worry about giving too many examples, as I will reach the point when I can no longer think of any. However, I can think of one that might help. The threat of disruption to communications systems might on occasion have a significant effect on air traffic control, for example. In itself, that would not necessarily constitute an immediate threat to human welfare, but emergency powers might be needed to intervene and to deal with the situation urgently. One can imagine such circumstances. It is important that if we are to provide Parliament with security as to what might happen, we must ensure that there is clarity on what the circumstances that constitute a threat to human welfare are. 
 I am certain that most of the cases that would come under subsection (2)(f) would very likely be brought together with paragraphs (g) or (h), which deal with disruption of facilities for transport and the impact on health respectively. However, intervention might be required because many other systems now depend on electronic communications. I do not think that such powers are likely to be used, and I hope that the general powers in the Bill are not likely to be used anyway. However, they may, of course, have to be. In many cases, the utilities might be perfectly capable of dealing with matters arising from the kind of emergency that is envisaged in part 1. However, one can envisage a situation in which, for example, the duty of the utilities to their shareholders might conflict with the Government's duty to the nation. In those circumstances, the Government might have to make a temporary provision to direct how the utilities operate in order to deal with the situation. 
 Some hon. Members talked about how electronic systems could be disrupted, and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) mentioned the Sobig virus. He must be reassured that only disruption that was a serious threat to human welfare—''serious'' is clearly stated—would require such action. The Sobig virus did not meet that test. 
 The hon. Member for North-East Hertfordshire (Mr. Heald) raised the slightly daunting spectre of legal action by a landowner when the Government had not taken action under emergency powers. I have 
 sought advice on the matter and it is quite true that it would be possible for such action to be contemplated, although I do not think that his point about coastal erosion would be covered by emergency powers. If someone attempted to take action through the courts to show that the Government should have used emergency powers, they would be able to do so. However, my judgment, which is supported by the history of judicial review, is that the judiciary would be reluctant to substitute its discretion for that of Ministers in such cases.

Elfyn Llwyd: I am interested in the Under-Secretary's remarks. If she is correct, surely there is an entirely new concept in the law in England and Wales. Let us say that, in a flooding incident, householders A, B, C and D were looked after because a barrage had been erected. If householders E and F unfortunately did not receive that benefit, however, they would go to the Government and say, ''Look, because you've not protected us, we're going to sue.'' The provision could offer carte blanche for some rough rides through the courts for the Government in the coming years. I would welcome the provisions if the Under-Secretary is right, but I question whether that interpretation is correct.

Fiona Mactaggart: What I was saying, in answer to the hon. Member for North-East Hertfordshire was that anyone could raise an action, but that I saw no prospect of an action enjoying any success under the approach that our judiciary takes. Our system of law permits people to take legal action, but it does not guarantee them success.
 On amendment No. 93, the hon. Gentleman raised flooding, which can be devastating to infrastructure and property. It is appropriate that powers are available if there is a threat of flooding on such a scale as to sever vital road and rail links and devastate buildings vital to the provision of essential services. Although it is proper to discuss what might be considered an emergency, the Government must resist the amendments.

Michael Trend: The Under-Secretary, being my neighbour in east Berkshire, will know that we experienced a serious flood some 12 or 13 months ago, which mainly affected my constituency, but which might have affected hers to some extent. The people who were flooded, or who were involved in trying to find a way forward with the Environment Agency through flood risk and alleviation groups, feel strongly that they might have some grounds for action against the agency or the Government. Does the Under-Secretary envisage that an emergency might be declared in a slightly worse situation than that one? How high on the grade of situations that could be declared emergencies was that?

Fiona Mactaggart: The hon. Gentleman was not here earlier when I gave an example of a flood that might have that result. That example would be familiar to people in his constituency of my age and over, being the 1953 flood, which affected the same area and a larger area. It put the road that runs between my constituency and that of the hon. Member for Maidenhead (Mrs. May) completely under water, and turned Cookham into an island with about two houses on it. A flood of that size could be considered to require the kind of powers envisaged in the Bill, whereas a flood such as the one that we recently experienced could, although devastating to our constituents, properly be dealt with within the current legislative framework. The legislation that we are debating should be used only when the problem cannot properly be dealt with by other legislation.

Oliver Heald: Amendment No. 78 concerns electronic systems. I am not satisfied with the Under-Secretary's response. Under clause 18(1), an event must threaten serious damage to human welfare to be considered an emergency. Subsection (2) sets out the only circumstances in which that may arise, unless subsection (5) is used, by order, to add to a class, or to treat a specific incident as coming under one of the relevant headings, whether or not it might otherwise do so.
 One is entitled to ask, ''Can I imagine any circumstances in which disruption of an electronic system of communication would justify emergency powers legislation if it did not also involve disruption to money, food, water, energy, fuel, transport or health, loss of human life, human illness or injury, homelessness, or damage to property?'' If a disruption would not make any of those things happen, it is hard to see why it would warrant an emergency being called. I am not satisfied that there is a circumstance in which that would be the case. The Under-Secretary tried valiantly to give an example, and I give her full credit for trying. She came up with the example of air traffic control, but that would clearly involve disruption of facilities for transport, a point at which she later hinted. I am not satisfied, and I want to press amendment No. 78 to a Division. I am not quite sure of the procedure, because it is not the first amendment in the group, but in so far as it is necessary to ask for such a thing to happen, I ask now.

Richard Allan: We will take your advice, Mr. Benton, on how and when we can divide on that amendment. I have been moving backwards and forwards on my own amendment as the Under-Secretary has spoken. She gave a very considerate response, which in some ways has made things clearer. We are dealing with a huge set of events that can cause all the things described here. For instance, murders cause loss of human life, evictions can cause homelessness, computer viruses can bring down networks, the transport system can be disrupted on a daily basis by the train operating companies. All of that can happen, but for the emergency we are dealing with, the subset
 that must be satisfied is the condition of causing serious damage to human welfare. That is my understanding of her comments.
 In that context, I can understand the reason for paragraphs (a) to (c) and (e) to (h). They are restrictive, and clarify the circumstances that would call for declaring an emergency. However, paragraph (d) stands out in even greater contrast, because it is the least well defined of them all—anything can be ''damage to property''. The others seek to narrow the definition; but paragraph (d) is the one that absolutely broadens it out. I remain concerned about it. I understand the logic of the others paragraphs, but not of paragraph (d). 
 On the flooding point, again we remain concerned because the importance of the reference to flooding, which we seek to delete, is that it refers back to subsection (1)(b), about the environment of the United Kingdom. The Under-Secretary talks about flooding and the damage to human welfare, but we are not talking about flooding in that context. The reference to flooding is specifically related to subsection (1)(b) and damage to the environment, rather than subsection (1)(a) and damage to human welfare. The flooding question remains open. 
 My instinct is not to press our amendments, bearing in mind strictures from the Chair about issues that one might wish to return to. I think that we need to consider this issue further. I am not persuaded that the hon. Member for Ealing, North (Mr. Pound) is entirely on our side on this occasion, although he promised support on earlier occasions. I do not intend to press our amendments, but I hope that that does not disrupt the ability of Conservative Members to press amendment No. 78, which I would be minded to support.

Joe Benton: I shall put the question on amendment No. 78 formally when we come to it, but at the moment we are dealing with amendment No. 91.

Richard Allan: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 78, in 
clause 18, page 11, line 38, leave out paragraph (f).—[Mr. Heald.] 
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 10.

Oliver Heald: I beg to move amendment No. 107, in
clause 18, page 12, line 11, leave out subsections (5) and (6).
 The amendment would remove subsections (5) and (6). Those subsections allow the Secretary of State to say that an event threatens damage to human welfare, and also to amend subsection (2) to define whether disruption to supply threatens damage. Subsection (6) allows consequential amendments to part 2 of the Bill provided that the draft has been approved by both Houses. 
 My hon. Friend the Member for Stone (Mr. Cash) made it clear on Second Reading that the subsection was worthy of particular consideration. He made the point that although times and circumstances had changed since 1920, questions of liberty and justice remain immutable. He pointed out that the Bill allows for carte blanche amendment, as he put it, and adaptation of existing legislation. He went on to criticise subsection (5) as enabling a Secretary of State to add classes of events and situations and specify them pretty much at will. That would obviously be subject to approval of both Houses of Parliament, but with a Government with a substantial majority—up until now—it will happen. 
 My hon. Friend went on to quote Rene Descartes as saying, ''I think, therefore I am''. He made the point that in this Bill, the Secretary of State is saying, ''I think, therefore it shall be.'' I would like to probe the Minister on the purpose of subsections (5) and (6). Why are they necessary? In the context of the structure of the clause, which is designed to list only the matters that shall be treated as threats to human rights, is it right that the Government go on to say, ''Except that, if we want to, we can add any range of ideas or particular event''. The provisions do not seem to have the sort of certainty that the Under-Secretary was talking about a moment ago. 
 Will the drafts be amendable? The draft cannot be laid before Parliament and amended, which is true—unusually—of the emergency regulations themselves, and that concession has been greatly welcomed. Given that the effect of the provisions could be to open up a range of new areas in which emergency powers can be given, should not the drafts be amendable? 
 What will happen if we are in an emergency situation and the powers need to be exercised, but Parliament is unable to meet, for whatever reason? One can imagine an emergency bad enough that Parliament would not be able to meet. In those circumstances would the Secretary of State be stuck and unable to add to the categories, or is there some catch-all arrangement later on in the Bill? Would it be possible to deal with matters in some other way?

Alistair Carmichael: My hon. Friend the Member for Sheffield, Hallam (Mr. Allan) and I are probably in agreement with the Conservatives on this point. With good
 reason, the powers relating to subsections (1) and (2) have been drawn fairly widely, and we have no real quibble with that. However, to provide that the powers can effectively be amended by an order when they are as widely drawn as they are makes us feel somewhat uneasy.

Oliver Heald: One point that I did not make, on which the hon. Gentleman may wish to give us his thoughts, is that if the matter were dealt with as the clause provides, we would normally be talking about a 90-mintue debate. As an important issue could arise, is he satisfied with that?

Alistair Carmichael: It will come as no surprise to anyone that I certainly do not think that that is a particularly satisfactory way of dealing with the matter. The way in which this House, as opposed to the other place, deals with secondary legislation is not satisfactory, particularly when we are talking about an issue of such importance and gravity. If it were merely a question of orders being made under subsection (5)(a) to specify or exemplify the powers that are to be exercised under the earlier subsections, I might not have a quibble. However, when subsection (5)(a) is read with subsection (5)(b) and subsection (6), it is clear that what is envisaged is rather more extensive. I would be interested to hear the Minister's justification for that.

Patrick Mercer: It defeats me why subsections (5) and (6) are necessary. The powers in the clause are spelt out clearly and thoroughly in subsections (1) and (2), and they give a sufficient level of power. In combination with the triple lock that we were talking about earlier, that means that the powers can be considered in some detail, and that there can be negotiations and debates. The imposition of subsections (5) and (6), however, seems wholly illiberal. Every other check and balance in the clause will be overthrown at the whim—perhaps that is a slightly unfortunate word—certainly at the behest of a Secretary of State whose party enjoys such an enormous majority in the House. The amendments are intended to redress that balance. I really do not see why subsections (5) and (6) need to be included. The rest of the clause means that things can be dealt with perfectly competently and capably. I would be most interested to hear how the Minister can possibly justify the imposition of the two subsections.

Michael Trend: I recognise what the provisions are intended to do. Most human beings would think that the fact that those who drafted the Bill drew up a huge list would suffice. They would think that ''damage to property'' and ''loss of human life'' would catch almost anything going, but there is a terrible temptation among those who draft Bills to say, ''Oh well, just in case there's something that we haven't thought of, let's bung in a catch-all provision at the end. We can think of some way of doing that, using this sort of instrument or that sort of instrument.'' Speaking for myself, I think that it is part of the role of Governments to question strongly whether such things are needed, or whether in certain circumstances, which one cannot
 imagine, they may have some mischievous purpose. I ask the Minister to consider carefully whether the subsections are justified. Could something that was so extraordinary not be seen on the radar and appropriate legislative measures be taken in a timely fashion? I understand why a catch-all provision has been recommended, but I am not persuaded that it has a purpose. We need to be able to envisage the sort of circumstances in which it might be used, and in that case we ought to make a judgment about that.

John Horam: Is there any precedent for this sort of conjunction of arrangements, whereby on the one hand we have an extremely comprehensive list of the circumstances in which emergency measures may be taken, and, on the other, we have a catch-all provision? I have seen legislation that is pretty wide-ranging, whereby more or less everything bar the kitchen sink can be considered, and I have seen legislation that is clear about what is involved. What I have never seen before is the two brought together in this way. I wonder whether the Minister has any precedents that she can quote to back up her case.

Fiona Mactaggart: I start by telling the Committee about the purpose of the power. People have assumed that it has a slightly different purpose than that which is intended. It is designed to enable the Secretary of State to specify more precisely whether a particular event or situation, or a particular class of event or situation, falls inside or outside the definition of emergency. It is not designed to give a power, nor does it do so, to amend that definition. So, all the provisions of subsection (1) will continue. That definition is a broad one. It is not possible to specify in the Bill every event or situation that is an emergency.
 However—this is the circumstance in which the power might be used—it may be possible to identify impending events and situations that might become emergencies. An example of a situation that turned out not to be an emergency, but that we all thought might become one, was the millennium bug. That was an example of an apparently impending potential emergency that turned out not to be an emergency. There are hon. Members in the Committee who know much more about the consequences of the millennium bug than I do. 
 The intention of subsection (5)(a) is not to change the list of what is required to provide a threat to human welfare, but to say whether an event falls inside or outside the definition in subsection (1). That would provide an opportunity to have a debate in advance of an event occurring about whether it might be an event for which it would be appropriate to use emergency powers.

Michael Trend: I agree that the millennium bug is a good example, but surely that would be covered by subsection (2)(f), the hugely controversial disruption of electronic or other systems of communication. That rather makes my point. I think that it is covered.

Fiona Mactaggart: Indeed not, because I am talking about the power in subsection (5)(a). That power provides
''that a specified event or situation, or class of event or situation, is to be treated as falling, or as not falling, within . . . paragraphs (a) to (c) of subsection (1)''. 
It gives Parliament an opportunity to discuss an impending event, or potentially impending event. So, Parliament could have a second bite at the cherry. I understand hon. Members' concerns that that might provide a free ride, but it is designed to give Parliament an additional opportunity to question before a Minister takes action.

Richard Allan: Will the Under-Secretary clarify how it is intended that the power should be used? This is the part of the subsection that we think is sensible. It is more restrictive than open. Is it the Government's intention to publish a set of regulations that say that floods of a certain magnitude and certain types of terrorism will fall within this, or will it be used specifically on a case-by-case basis? Will the Government say, ''We expect floods of a certain magnitude next year, therefore this year we are bringing in the regulations''? I wonder if she could clarify how they intend to use this order-making power.

Fiona Mactaggart: Matters will need to be dealt with on a case-by-case basis. Had we been able to make complete provision in advance, that would have been built into the Bill, as we have tried to do throughout. That is why we have tried to be comprehensive. What we are trying to do here is ensure that, in a matter that could fit within the concept of emergency with which the Bill is designed to deal, and that, if, as could be the case, it is foreseeable and foreseen that under subsection (5)(a) a class of event could be considered to fall within subsection (1)(a) to (c), there would be an additional opportunity for Parliament to hold the Executive to account.
 The hon. Member for Stone was concerned about the other parts of the clause that he felt might be a catch-all opportunity. I will try to assist hon. Members to understand how the rest of the provision continues. Having agreed that subsection (1) is not amendable, although Parliament could decide that a particular event was covered by it—we are not seeking to amend it, but to give Parliament an opportunity to decide whether an event is included—the second part of the provisions could allow subsection (2) to be amended in order to provide that 
''involving or causing disruption to a specified supply, system'' 
such as electronic communications, which might create an emergency, is treated as threatening damage to human welfare. 
 We discussed earlier how the 1920 Act did not envisage the importance of telecommunications and information technology. The complete collapse of the telecommunications system might cause a national emergency on its own. The second part of the provision says that either something is, on its own, not threatening damage to human welfare, or one could add to that list to ensure that the Bill is constructed in a way that makes the list comprehensive. If it is, Parliament is the body to which Ministers are properly accountable. We need a mechanism to ensure that the 
 list remains comprehensive in order to sustain the structure that says that, ''A matter can be treated as an emergency only if one of the following happens.'' 
 Although the appropriateness of much of the definition of emergency will not be affected by the passage of time, it is possible—it has happened since the 1920 Act. We do not want continually to pass legislation on the matter. New supply systems, facilities and services might become so essential to human welfare that civil protection duties should apply to an event that disrupts them.

Alistair Carmichael: Subsection (5)(b) refers to
''involving or causing disruption of a specified supply, system, facility or service''? 
I have read it several times, as has my hon. Friend the Member for Sheffield, Hallam, and we just cannot see what it means.

Fiona Mactaggart: Subsection (2)(e) to (h) uses the same fundamental language and concept of the disruption of a supply. Subsection (5)(b) gives the power to rule out one of the events in subsection (2)—for example,
''(g) disruption of facilities for transport''— 
and say that it is no longer necessary. In future, we may be saying ''Beam me up, Scottie''. It also gives the power to include a new, specified supply, system, facility or service. Therefore, it echoes the language in subsection (2) to show that the Bill is not an unfettered framework and that we will consider whether new forms of supply, if interrupted, might cause damage to human welfare.

Alistair Carmichael: It might be clearer if we echo the language of subsection (2)—''an event or situation''—in subsection (5)(b) by putting those words with
''involving or causing disruption of a specified supply''.

Fiona Mactaggart: The hon. Gentleman is getting into matters of drafting.

Alistair Carmichael: That is what we are here for.

Fiona Mactaggart: It seems to me that the meaning and the intention are clear. If we use subsection (2), disruption of the kinds of supply that are not currently listed could be included in circumstances where there could be serious damage to human welfare was threatened. Unless such a provision is included—I am not prepared to banter about the language—we will be unable to sustain the principle of the Bill, which is to be comprehensive about what constitutes damage to human welfare.
Mr. Allan rose—

Fiona Mactaggart: For a final time I will give way. I am being generous.

Richard Allan: We are not seeking to banter, but we are trying to be helpful on a subsection that we do not like in its entirety.
 My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) has a point in relation to the wording of the subsection. To us it is not clear. Part of our job in Committee is to look at lack of clarity in the wording as well as at the issues and principles. If the Bill stays as it is because the amendment falls, we want it to stand on the record that we believe that the wording could be improved.

Fiona Mactaggart: I would be prepared to reconsider the drafting of the subsection. We disagree here about what we are seeking to achieve.
 The power in subsections (5) and (6) is a limited power that does not change the definition of an emergency, but allows us to retain the Bill's framework, which is to have a comprehensive definition of what represents a serious threat to human welfare. In my view, the power increases the clarity and accountability of the Bill.

Elfyn Llwyd: I can follow the Under-Secretary's argument. Considering subsection (6) and the need to place a draft resolution before Parliament, if an urgent need arises during a lengthy recess, does she envisage Parliament being recalled to consider such a measure?

Fiona Mactaggart: The hon. Gentleman is right in that the subsection (5) power could not be used if Parliament was not sitting. As I have tried to show, however, that power is designed not necessarily for use in an emergency, but to ensure that the definition can be kept up to date over time and that when one can envisage a situation requiring the use of emergency powers Parliament would have an opportunity to debate whether it fell within the definition of an emergency in subsections (1) to (3).

Oliver Heald: I have become more concerned about the subsection as the debate has gone on. I understand the Under-Secretary's point about the millennium bug or some other possible major catastrophe, but I have thought about the matter a little more and I wonder whether the reason for subsection (5)(a) is that Ministers or their officials are concerned that some decisions might be controversial and that it might be hard to decide whether they fall either side of the line. If a decision was later found to be unreasonable, the consequences in terms of legal action and damages may be substantial. Is the purpose of subsection (5)(a) to enable a controversial decision to be ratified by Parliament so that it definitely falls within the framework of subsections (1) and (2)? In other words, is this a back-covering operation to enable Ministers to take difficult decisions? That is the first concern that has arisen in the debate.
 The second concern involves subsection (5)(b), which gives the Government carte blanche to add new categories of disruptions to systems, services and supplies. There is little justification for that. The Under-Secretary may rightly say that the structure here provides a list that clearly defines the services in respect of which disruption would cause harm to human welfare. In such circumstances, however, I do not think that the Government are entitled to have a catch-all and say, ''Oh well, in 30 years science may 
 have changed.'' We pass so much legislation that surely we could find the time to consider a short two-clause Bill if it really were necessary to add a new category. As has been said, subsection 5(b) is a bung-it-in operation, while subsection 5(a) is a cover-the-Minister's-back job. I am therefore not at all satisfied on subsection 5(b). 
 Subsection (6) allows primary legislation to be changed by order, which the House is always anxious to avoid because it gives away the power and sovereignty with which we are all entrusted. This is not a satisfactory situation, and we will want to reconsider it on Report. At least, I imagine that my hon. Friend the Member for Stone will be very keen to reconsider it, as he has taken such particular care over the issue. 
 On the understanding that we want to return to the matter, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Joe Benton: Members of the Committee now have the opportunity to discuss matters relating to amendment No. 84, although it has not been selected and cannot be voted on.

Patrick Mercer: At the near-conclusion of our debates relating to the clause, and having examined the definition of a state of emergency in parts 1 and 2, I want to point out that clause 55 of the Fire and Rescue Services Bill provides a wholly different definition of ''emergency'', which members of the Committee can read for themselves. I hope that the Under-Secretary will not think that I am endeavouring to spoil or wreck in any way by producing this quibble; it is probably no more than that, but it is important. My question is simple: if ''emergency'' has been so defined for the Fire and Rescue Services Bill, is there such a great difference between the requirements of that Bill and those of this Bill? Why did we not give due consideration to the issue earlier, when we discussed part 1? If the definition of ''emergency'' under the Fire and Rescue Services Bill is perfectly adequate, why was that not taken into account during the drafting the of definition of ''emergency'' for this Bill?

Fiona Mactaggart: As I have constantly said, our aim is to try to ensure that the drafting for the definition of ''emergency'' is comprehensive and clear. The reason for that is that the powers that we seek to create through the Bill are significant. It is therefore particularly important that Parliament be fully involved in defining as comprehensively as possible the definition of an emergency.
 The context for that definition is different from the context of the Fire and Rescue Services Bill, to which the hon. Gentleman referred. For example, countering terrorism is not a primary aim of firefighters. In those circumstances, while providing for these powers, we felt it proper to seek as much transparency as possible by making the definition of the circumstances in which they might be invoked as comprehensive as possible. Transparency and clarity have been our priorities. Our 
 aim should be to give as full an indication as possible to Parliament and to the public of the situations in which the use of emergency powers might be necessary.

Patrick Mercer: Transparency and clarity are—forgive the pun—extremely clear, but having two different definitions of ''emergency'' in two different Bills seems neither transparent nor clear. Does the Under-Secretary imagine that many other definitions of ''emergency'' exist in legislation, and if so how many? Does she foresee the introduction of other definitions in other Bills?

Fiona Mactaggart: I have not done a word search for other definitions, so I cannot tell the hon. Gentleman how many there are, but I can tell him that there are good reasons for having definitions that are appropriate to the context. The context of the definition in question is the kind of emergency in which it might be appropriate to use emergency powers. There are other emergencies in which the appropriate reaction is to send an ambulance or a fire truck. The definition of those emergencies is quite different from that for the ones that we are discussing in relation to part 2. According to the context, it is necessary to have different definitions of ''emergency''.
 We have sought to provide as full and transparent a definition of ''emergency'' as possible because our judgment is that there is merit in seeking as comprehensive a definition as possible to make clear to Parliament and to the people all the circumstances in which it could envisaged, although it would not certainly happen, that the Government might use the emergency powers that the Bill provides for. That is the reason for taking such an approach. I am confident that it is the right approach and that it gives the appropriate power to Parliament as well as the appropriate understanding to people of the circumstances in which these powers might be used.

Oliver Heald: Was there any consultation about the two different definitions among those giving instructions to parliamentary counsel, because there seems to be no reason for not using the definition in the clause in the Fire and Rescue Services Bill?

Fiona Mactaggart: There has been consultation, of course, but our view, which I have just set out, is that different circumstances require different definitions. ''Emergency'' has a natural meaning and the definition required—for example, in providing for how one would deal with an ambulance or health services emergency—is different from the definition that might be required for the Bill. That is why we have given as clear and comprehensive a definition of ''emergency'' as we can. It seems to be the right way to go to be as transparent as possible about the circumstances in which we might use emergency powers.

Richard Allan: I apologise for not diving in before, but I was looking at the next group of amendments. This will not require a ministerial response, as it is more a comment on the clause than a question.
 I simply wish to put it on the record that the Liberal Democrats remain concerned about the definitions in the clause. I am aware that we are only on lock 1 of what is supposed to be a triple lock and that we still have to make a great deal of progress. Having spent a lot of time considering the matter—we needed to do so—it seems that the first lock is not really much of a lock at all. I suspect that the other two will be more of a lock, but the definition is so broad and comprehensive that to call this a lock is a misnomer. We remain concerned about some words, which I am sure we will return to at later stages. 
 Question put and agreed to. 
 Clause 18 ordered to stand part of the Bill.

Clause 19 - Power to make emergency regulations

Patrick Mercer: I beg to move amendment No. 37, in
clause 19, page 12, line 35, leave out paragraphs (b) and (c) and insert
'or
 (b) one of Her Majesty's principal Secretaries of State, whose sole responsibility relates to civil contingencies'.

Joe Benton: With this it will be convenient to discuss amendment No. 95, in
clause 19, page 12, line 36, leave out paragraph (c).

Patrick Mercer: Amendment No. 37 stands in my name and the names of hon. Friends. Amendment No. 95 was tabled by the Liberal Democrats, and I have no doubt that they will give it due cognisance in its own right.
 It is clear from amendment No. 37 that we believe that too many people can say too many things about too many parts of the Bill. Clause 19(3) states: 
 ''In this Part ''senior Minister of the Crown'' means— 
 (a) the First Lord of the Treasury (the Prime Minister), 
 (b) any of Her Majesty's Principal Secretaries of State''. 
My contention is that this part of the Bill will allow the powers to be used far too broadly by far too many Ministers under far too many different conditions. This problem has consumed the United States, which has amended its constitution as a result of the events of 11 September 2001. It will come as no surprise to anyone in this Committee that the Americans have chosen to establish one Minister, one Secretary of State, one director who will be in charge of this style of operation. It has given powers to one individual, Tom Ridge, and his Department of Homeland Security. The amendment would mean purely and simply that there would be one figure, one focus, one part of government that would be able to deal with these problems and invoke these powers.

Richard Allan: The hon. Gentleman cites the American example, of which he approves. I am curious to know what would happen if Tom Ridge is unfortunately taken out in some incident and someone else has to take over. How would that work?

Patrick Mercer: That is an extremely helpful intervention. A pre-established chain of command in the Department of Homeland Security takes exactly that point into account. In the event that Secretary Ridge is killed or injured or becomes unavailable to make decisions, it is fully established that the next person will step up. Given our earlier discussion, I believe that we have no such clear chain of command, and that is my criticism of this part of the Bill in particular. The point will be made a little more clearly in amendment No. 95, on which I am sure the hon. Gentleman will comment. However, unless we make it clear that there should be one focus for the powers before us, there is a danger that they might be invoked in a series of different situations. Clausewitz said that war was the province of confusion, and it is probably fair to say that emergencies will be exactly the same.
 This country has probably been preparing for traumatic disaster since we first contemplated the possibility of poison gas being used on our population in the 1930s. We certainly made such preparations during the cold war. None the less, we have no experience of emergencies on the scale that we are discussing, which is why the Bill seems perfectly acceptable. However, nations that have been through such traumas—I am thinking particularly of America—suggest that power should be in the hands of one person. The Government should accept the amendment so that the power before us lies entirely in the hands of a senior Minister of the Crown, such as the First Lord of the Treasury—in other words, the Prime Minister. If not, they could think about establishing the post of Secretary of State for homeland security, or whatever else they might like to call it. That could be a job for the Deputy Prime Minister. As they stand, however, the proposals are wholly unacceptable and wide of the mark. The great problem is that the decision-making process will lead to misunderstandings and further delays in times of emergency. 
 Subsection (3)(c) relates to other Ministers who may be able to invoke the powers before us and refers specifically to 
''Commissioners of Her Majesty's Treasury.'' 
I do not, for one moment, want to cast aspersions on the powers or suitability of the Whips, and their noble office is well represented here today. However, there is no question in my mind but that such powers must not be dispersed willy-nilly so that they can be used by the Whips Office in an emergency. That may be a tradition, but it is one that we can well do without, and it should certainly not constitute a precedent, because it would become one only once it had been tried. I therefore believe that we need a Secretary of State or a Minister for homeland security and that, in a state of emergency, the powers before us should, on no account, be devolved down to a bunch of Whips.

Richard Allan: I rise to speak to amendment No. 95, which is in my name and that of my hon. Friend the Member for Orkney and Shetland. It directly targets the Whips, rather than any Department for homeland security—we know no fear on these Benches, although perhaps we have no future. The amendment takes up points that were ably made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) on Second Reading, when the provisions were called into question.
 The wording of subsection (3) is wonderfully arcane and obscure. There is the reference to 
''the First Lord of the Treasury'' 
although I am glad to see that, as a result of some modernisation process, we can now also call him the Prime Minister. That is a major innovation, which I am sure that Committees could have debated over months and years. However, the reference to 
''Commissioners of Her Majesty's Treasury'' 
remains as obscure as ever. When I looked at the Bill, I wondered who they were and assumed that they were civil servants. I looked at the explanatory notes to see whether they clarified matters, and paragraph 39 says 
''the Commissioners of Her Majesty's Treasury (the functions of the Treasury are customarily carried out by the Commissioners)''. 
That is all we have by way of explanation. 
 I went to find the list of Ministers and, lurking quietly at the back, is page 112, which is entitled ''Government Whips'', so I found out who the Lords Commissioners are. The hon. Member for Lewisham, East (Ms Prentice) is not one, but—and I am happy to be corrected if I am wrong—the Lords Commissioners are the Parliamentary Secretary to the Treasury, the right hon. Member for North-West Durham (Ms Armstrong); the Treasurer of Her Majesty's Household, the hon. Member for Coventry, North-East (Mr. Ainsworth); the Comptroller of Her Majesty's Household, the hon. Member for Glasgow, Rutherglen (Mr. McAvoy)—I say nothing bad about him; and the Vice Chamberlain of Her Majesty's Household, the hon. Member for Poplar and Canning Town (Jim Fitzpatrick), who assisted me with a private Member's Bill last year, so he is all right. There are then five other hon. Members—the hon. Members for Eastwood (Mr. Murphy), for Nottingham, East (Mr. Heppell), for Enfield, North (Joan Ryan), for West Carmarthen and South Pembrokeshire (Mr. Ainger) and for Halton (Derek Twigg). As I understand it, those nine are the Commissioners of Her Majesty's Treasury. My reading of the Bill, therefore, is that any of the nine could exercise these extraordinarily comprehensive powers.

Jim Dowd: I am not certain that the hon. Gentleman is correct. I was a Lords Commissioner for four years, and my feeling was that list was made up of the First Lord, the Chancellor of the Exchequer, and the five Lords Commissioners—just those seven. It did not include the Officers of the Royal Household, whose names the hon. Gentleman read out.

Richard Allan: I am grateful to the hon. Gentleman. Standing Committees exist precisely to elicit information about who is and who is not a Lords Commissioner. I am sure that we shall find out in the course of the debate. I hope that the Under-Secretary can respond on that point. In that case, it is even more extraordinary that the more junior members of the Whips Office—those who are more junior than the Officers of Her Majesty's Household—can exercise these powers.
 The powers can be exercised by those in the Whips Office, but that does not include even the Chief Whip or those at the top level. The Whips may be perfectly able, but they are not normally held accountable to the House. They do not speak to the House in their own right and they would never introduce regulations in normal circumstances. The Bill is clear that the regulations will be brought into play in an emergency and then must be brought to the House of Commons within seven days. Therefore, those people must stand up and justify why the regulations have been introduced. It seems extraordinary that those who normally never conduct such parliamentary business should be given that power. 
 We can argue about Secretaries of State. The hon. Member for Newark (Patrick Mercer) may have a point that, unless there is a major crisis in theatreland, it is hard to see why the Secretary of State for Culture, Media and Sport should make emergency regulations. However, at least all Secretaries of State regularly make regulations and justify what they do to the House and, in the public's view, are accountable in the ordinary sense of the word. Whips are not normally publicly accountable, which is why it seems extraordinary to include them in the Bill. 
 I should appreciate clarification from the Under-Secretary as to the extent of the power. It may be more restrictive than I first imagined and only seven of those individuals would be given the power, rather than the nine whom I listed. However, the Government will have to make a powerful case for moving down the chain of command to the Commissioners of Her Majesty's Treasury, when however many Secretaries of State are available as well as, potentially, the First Lord of the Treasury. It would be much better if the Government conceded that it would be better if the Bill named the Prime Minister and the principal Secretaries of State and left it there.

Elfyn Llwyd: I agree with the hon. Gentleman. I cannot understand this arcane power, but no doubt the Under-Secretary will explain it in due course.
 Several hon. Members ridiculed this aspect of the Bill on Second Reading, but—I hope that this is not a ridiculous point—what is to prevent the Whips Office from deciding that a couple of dozen of the usual suspects who might vote for or against the foundation hospital Bill or another difficult piece of legislation should suddenly be called to go firefighting in Scotland for a fortnight? That may sound ridiculous, but how would the Whips be accountable to the rest of Parliament or to others? At least Ministers are accountable to Parliament and the electorate, but the inner and dark workings of the Whips Office are 
 different. Many of us have no idea how it works, and many of us do not want to know. Is this part of the Bill a hangover from the bad old days, or does it have a real, proper and current purpose?

Michael Trend: On Second Reading, one of my right hon. Friends said that Whips whose names we barely know might have the power to make draconian regulations. That is a good point, which should be returned to. I understand that if we were confronted by an emergency, the public might take comfort from seeing the Prime Minister or one of the Secretaries of State, many of whom are recognisable, on television saying, ''This is a great emergency.'' Sadly, many senior politicians are not recognisable to the public these days, but one of those who are could say, ''This is a serious emergency,'' and carry the country with them. It would be a bad idea to have someone that no one has ever heard of, and who is mysterious even to some Members of this House, to do the necessary public relations job on the television and in the media generally. I am persuaded, as are other hon. Members, that there may be some historic reason for that. If so, is it still appropriate?
 I return to a point made by my hon. Friend the Member for Newark about the Department of Homeland Security model, although I do not have a view on whether that would be desirable. Under that system, there is continuity of civil servants. One department considers one thing and nothing else and ensures that there is proper co-ordination and joined-up government. Can the Under-Secretary reassure us that there would be continuity of advice if the Prime Minister were not available and the power went first to one principal Secretary of State and then to another? In the grave circumstances under which an emergency might be declared, it would be risible if the relevant people in the Prime Minister's office said, ''Oh, well we can't deal with it, it has to go to the Secretary of State for Trade,'' or something, and then the papers had to be shuffled across Whitehall, and that Department said, ''Oh, no, it had better go to the Secretary of State for Education. He or she is the only person in town at the moment.'' 
 It would be a comfort to know that, if we are not to have a separate Department of State to deal with possible emergencies, some fundamental continuity of advice will be given by the civil service. I can understand why we might change the primary player—we might choose a different protagonist to deliver the message—but surely the advice must come from one consistent and coherent body. It cannot be shuffled around the Cabinet responsibilities of the various Secretaries of State.

Alistair Carmichael: I am reminded that in the days of ''Protect and Survive'' and of discussions about what we would plan for and who was to get to the bunker, it was always assumed that rats and cockroaches would survive a thermonuclear attack. Is it the view of the Government's draftsmen that the Lords
 Commissioners of Her Majesty's Treasury are somehow similarly genetically resilient? Of course, I do not seek to draw any further parallels between those species.
 I am mildly curious about the reasons behind the term ''Principal Secretaries of State'', and would be grateful if the Under-Secretary would clarify that. I have never before come across that term in legislation, but I imagine that it would include the Chancellor of the Exchequer, the Home Secretary and the Foreign Secretary. Is that the case? If there are principal Secretaries of State, presumably there are minor Secretaries of State. Should not they get the power before the Whips?

John Horam: I follow the point made by my hon. Friend the Member for Windsor (Mr. Trend) about what one might call the Government's collective wisdom and continuity. We are dealing with a practical situation, which has occurred before. There have been many emergencies before, which are always dealt with in a particular manner. Usually, the Home Secretary, the Deputy Prime Minister or the Prime Minister quickly set up a committee, including relevant Ministers who are thought appropriate based on the emergency situation. That is paralleled by a set of civil servants, who mirror the roles of the departmental heads on the committee.
 In relation to the clause, the explanatory notes state: ''In practice''— we should focus on the practicalities— 
''the exercise of these powers will principally be the responsibility of the Secretary of State for the Home Department as the member of the Cabinet with responsibility for domestic security and resilience, acting by collective agreement.'' 
That is the usual way in which things are done. In fact, most of the other Departments that we are considering in relation to the provision sprang from the Home Department. 
 In Victorian times, the Home Department dealt with health—but not education—and most of what we now consider social services. If I remember rightly, in Disraelian times there were about 12 members of the Cabinet—as opposed to 24 today—and the Home Secretary had considerable powers. At that time, the only eccentric point, if I recall my studies of the period rightly, was that there was a Minister for the Horse, which was a rather strange animal to have in the Cabinet. The Minister for the Horse in Disraelian times was the Earl of Avon—not the one we think of, but perhaps his relative. There were strange arrangements at that time, but there was a small number of Cabinet Ministers because the Home Secretary dealt with a large number of responsibilities in his remit.

Oliver Heald: I do not know whether my hon. Friend heard the sotto voce intervention from the other side that there is a Minister for the Horse: the former First Minister of Wales, who deals with hunting.

John Horam: Splendid. Time has moved on, but we have a similar situation today. I am glad to hear it. None the less, the natural person to deal with emergency situations is the Home Secretary. If he is not available for some reason, the Office of Deputy
 Prime Minister has latterly sprung up—it has not long been in existence—and the Deputy Prime Minister would normally be considered an appropriate person. That was certainly the case under the Conservative Government—although there was not a Deputy Prime Minister until the latter stages. If he was not available, the Prime Minister would normally deal with such matters.
 I remember the emergency related to BSE, which was a big problem during the latter years of the Conservative Administration. I was involved because I was in the Department of Health at the time and my Secretary of State, the right hon. Member for Charnwood (Mr. Dorrell) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who was Minister of Agriculture, Fisheries and Food, were both involved. The immediate response of the Government in those circumstances was to set up a committee under the leadership of Lord Heseltine to look at the situation. The members of that committee took decisions on a collective basis. That is the way that Government have operated for as long as I can remember. 
 My hon. Friend the Member for Windsor is right. That is the way that things are done, and I do not see why we need to provide for something different in the clause, when there is a perfectly practical way of operating that has stood the test of time and includes the right people automatically. I do not see why a legal framework should be set up to set out a series of alternatives that are unnecessary.

Oliver Heald: The debate on Second Reading relating to this issue was characterised by a great deal of complacency on the part of Ministers. The obvious point has been made that the recently published Phillis report found that there is poor co-ordination between Departments and agencies, the Central Office of Information, the Cabinet Office and No. 10. That shows up most starkly when there are Government-wide crises, such as the outbreak of foot and mouth in 2001. The Police Federation has called for clear and unambiguous issues pertaining to jurisdiction, remit, lines of control and lines of communication to be set up, and has talked about permitting proper and effective co-ordination. Yet on Second Reading, the Minister fell back on long-standing practices and frameworks in a most surprising way, given his usual commitment to modernisation and the cutting edge—big conversations, and that sort of thing. That was slightly disappointing. Is the Minister seriously saying that he would prefer to have the Whips and the Deputy Prime Minister making these decisions, rather than a Secretary of State whose specific role would be to look after civil contingencies? If the Minister or Under-Secretary is saying that, it needs some explaining, because it sounds staggeringly complacent in a world that has changed since 11 September 2001.
 It is incumbent upon the Ministers to explain why they are so against having one Secretary of State with the power to decide matters of homeland security. One suspects the reason for it is Whitehall turf. [Interruption.] I am getting close to the horse. One suspects that it is to do with the Home Office and other 
 Departments wanting to retain their own areas. I call on the Minister to explain why he is so determined to stick to the old, tried and tested, long-standing practices, as he put it, when he is usually for the modernisation of everything. 
 I would like to say something about the Whips, and, in particular, pay tribute to the hon. Member for Lewisham, West, whom I shadowed for a couple of years doing Friday Whip. I must say it was very enjoyable and we worked very co-operatively together, although I think he blocked every Bill we wanted. There may be some role for senior Whips to perform, but it is not the passing of emergency legislation, and I agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham who, on Second Reading, said: 
 ''What possible reason should there be for a group of Whips, whose names we barely know, having the power to lay draconian regulations such as those I have described. That is preposterous, and I can think of no sensible reason why it should be the case—other than tradition, perhaps, but I know of no sensible tradition that would maintain such nonsense.''—[Official Report, 19 January 2004; Vol. 416, c. 1039.] 
We have had an interesting discussion about the five, the seven, and the nine—it reminded me of Enid Blyton meets ''Lord of the Rings''. The Minister needs to have another look at this. We do not want the Whips creating a state of emergency, particularly following recent events in the Labour Party.

Fiona Mactaggart: Let me first deal with the issue of whether we require a Department of Homeland Security, or a Minister with responsibility for homeland security. It is worth reflecting on our recent experience of dealing with terrorism, and our efforts in strengthening a system that has already been tested. That is what we are seeking to do in this Bill, rather than experimenting with a new model and a lengthy process of reorganisation. It is quite clear where responsibility lies—as the hon. Member for Orpington (Mr. Horam) pointed out, the fundamental responsibility here is with the Home Secretary, who leads in the Cabinet. He is supported by the Minister for Local Government, Regional Governance and Fire, the Minister for Citizenship and Immigration, and the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, who is responsible for the civil contingencies secretariat. That is the team. It draws together the experience of the Home Office in its counter-terrorism and resilience work, the experience of the Office of the Deputy Prime Minister in its work with various emergency services and their provision on the ground, and the co-ordinating responsibility of the Cabinet. That team is supported by all other Ministers, who take responsibility for ensuring that their Departments are ready to fulfil their lead responsibilities.
 The hon. Member for Sheffield, Hallam intervened to ask whether there might ever be a point when the Secretary of State for Culture, Media and Sport might be called on for help. It occurred to me that it was possible—although I am stretching it—that her 
 responsibilities for broadcasting might make her particular expertise relevant at a certain point, but that is deeply unlikely. 
 Our view is that resilience must be embedded within all Government organisations; putting it into a separate silo risks particular Departments not taking responsibility for their own resilience and marginalising events that are by their very nature not day-to-day but extraordinary, although they unfortunately feel more day-to-day at present. It is important to ensure that the way in which the Government go about their business includes the preparation for the extraordinary at every level.

Michael Trend: I may be hopelessly out of date, or I may just believe part of the mythology of Government that has never been true, but it was always thought that Cobra would spring into action in the case of national and civil emergency. The Prime Minister has used it in some circumstances. Does it still exist and is it the catch-all committee in which various parties would meet to make decisions in the case of a serious emergency?

Fiona Mactaggart: There are a series of committees and arrangements within the Government that bring Ministers together along with their civil servants in order to ensure that continuity and coherence—a point made earlier by the hon. Member for Windsor—is maintained. That is mainly done through the civil contingencies secretariat, which was established in July 2001and which is based within the Cabinet Office, reports to the Prime Minister through the security and intelligence co-ordinator and supports the Government's aim to improve the UK's resilience to disruptive challenges by working with others, inside and outside Government, on anticipation, preparation, prevention and resolution. That is the body that performs the role to which the hon. Gentleman refers.
 The civil contingencies secretariat provides the continuity of advice that all hon. Members in their interventions have said is important in dealing with civil emergencies. It is worth noting that the power to make emergency regulations lies primarily with the Crown. Under clause 19(1) an Order in Council by her Majesty provides the first step to initiating that power. When debating later clauses, it might be tempting to forget that important provision, whereby regulatory power first lies with the Crown, with its resilience and character that raises it above the hurly-burly of political debate.

Richard Allan: That was a helpful point from the Under-Secretary. Could she clarify for the record and the Committee generally how that would work in practice, and the extent to which an Order in Council involves independent scrutiny as opposed to the Secretary of State making an order and having it rubber-stamped by the Crown? Some people will feel that the latter is the reality and remain concerned.

Fiona Mactaggart: I cannot comment in detail about the precise way in which that happens, but I am certain that the Order in Council, which involves Her Majesty, has the character of the Crown being engaged. The Queen acts in all circumstances on the advice of Government. That advice is given at Cabinet level and is made by Order in Council.
 The overwhelming majority of responders to the consultation stressed how much they value regulations being made by Order in Council so that the role of the Queen is the pre-eminent and important role. The Crown is the person from whom the procedure should normally operate and that mechanism gives people more confidence if it is properly used. Her Majesty and at least two Privy Councillors must approve the Order. Approval is usually indicated orally and assent is signified by the Clerk to the Privy Council. 
 Let us remember that that is the way in which the matter will usually be dealt with. The amendments are secondary and the other people who may have the power to make regulations will do so only if clause 19(1) cannot be fulfilled. I hope that that reassures the Committee because that is what will usually happen. The Committee is aware that the Crown is resilient and that there are clear procedures to sustain it in times of emergency. The further provision whereby other people may use the powers that are provided under clause 19(3) to make emergency regulations will not normally be used. In normal cases, emergency regulations will be made under clause 19(1). 
 Why are the people in clause 19(3) identified? The aim is to ensure that regulations are made by proper people. We do not take the view that only a specific, identified Minister should have the power, and I have explained why. The most resilient way of dealing with emergencies is to embed them within all Departments. Our view is that emergencies should be dealt with by a senior Minister and they are listed as 
''the First Lord of the Treasury . . . any of Her Majesty's Principal Secretaries of State, and''— 
this caused most amusement on Second Reading and occasionally in the Committee— 
''the Commissioners of Her Majesty's Treasury'' 
which is how the Treasury is traditionally referred to in legislation. By tradition, the powers can be exercised only when two of the Commissioners of Her Majesty's Treasury agree.

Elfyn Llwyd: May I assist the Under-Secretary by referring to what she said on Second Reading? She said:
 ''Lords Commissioners are included in the Bill because there might be emergencies in which the primary interests affected are the responsibility of the Treasury, such as a terrorist attack on the Bank of England. In those circumstances, the Chancellor would be the person who one would normally expect to take progress forwards. The Chancellor and the Prime Minister are normally referred to in legislation in such a way.''—[Official Report, 19 January 2004; Vol. 416, c. 1179.] 
I am afraid that that is at complete variance with the clause that we are considering. In the clause, the Prime Minister is referred to in subsection (3)(a) and the Chancellor in subsection (3)(b). Why on earth do we need a catch-all phrase to refer to them in subsection (3)(c)?

Fiona Mactaggart: The aim is to ensure that the Chancellor is included. The phrase ''Principal Secretaries of State'' in subsection (3)(b) does not include the Chancellor. That is why subsection (3)(c) has been included. The Treasury Instruments (Signature) Act 1849 requires action to be taken by at least two Commissioners. Hon. Members raised concerns about wild behaviour, which we all know is completely unlikely. It would require at least two Commissioners to behave in that way at the same time. The hon. Member for Meirionnydd Nant Conwy asked what was to prevent Whips from sending dissident chaps off to the other end of the country when they were about to vote inconveniently, and the answer to that is the triple lock that is part of the Bill.
 The first person to sign would always be Her Majesty; the second would be the appropriate Secretary of State. The provision is not an attempt to extend the power beyond that; it is merely a reflection of the way in which the Treasury is usually referred to in legislation.

Richard Allan: If the purpose is simply to include the Chancellor of the Exchequer, I do not understand why subsection (3)(c) does not specify the Chancellor of the Exchequer. If there is a specific function for the Commissioners of Her Majesty's Treasury, who are able to sign away money—I think that the Under-Secretary referred to that; the regulations might cost money—I do not understand why that could not be built into legislation. As it stands, it seems that the Commissioners of Her Majesty's Treasury—the Whips—could sign an emergency regulation without any principal Secretary of State, or the Prime Minister or anyone else being involved.

Fiona Mactaggart: Let us be quite clear. They could do that only in circumstance in which the Crown was not able to do so.

Richard Allan: Without serious delay.

Fiona Mactaggart: Exactly. That is a powerful stop. The aim is to ensure that responsibility lies where it should. I have explained why we do not feel that there needs to be a special Minister, but I have also pointed out that the prime Minister with responsibility in this area will be the Home Secretary, and that usually we would expect the Home Secretary to be the person who, in most circumstances, would make emergency regulations. That will not be true in every circumstance, because there will be circumstances in which the lead Minister is an appropriate different Minister. To define the senior Ministers of the Crown in a way that seems to highlight particular Ministers and not others in a way that might, in any way, diminish the key role of the Home Secretary would be inappropriate. That is why we have created a construction that ensures that the list of people who are counted as senior Ministers of the Crown is comprehensive. Our aim is to ensure that decisions should be made where responsibility lies.

Elfyn Llwyd: The Under-Secretary has been generous to the Committee in giving way, although her voice is obviously beginning to fail her. She referred to the Commissioners of Her Majesty's Treasury as being how a Chancellor would normally be represented in legislative form. I do not expect an answer today and I am not putting the Under-Secretary on the spot, but it would help the Committee if, for our next sitting, she produced references to other legislation in which similar provision exists. In other words, we need to see other provisions under which those Commissioners—Whips—are entitled to make orders and other legislation.

Fiona Mactaggart: I have asked about the matter: there are 12,905 references to the Treasury and each reference has this meaning. I have already followed up the point that the hon. Gentleman makes. Our aim is to ensure that the regulations are made by the Crown. If the Crown is not available, and that would cause serious delay, there should be the ability for them to be dealt with by a senior Minister. We are discussing what a senior Minister is and I do not believe that the amendments assist us in doing that. [Interruption.] I will continue to resist the amendments, despite the tuneful sound that is making me almost inaudible.

Patrick Mercer: We have had an extremely interesting discussion of the two amendments. On amendment No. 95, Whips clearly should not be involved in such decision making. We have had a clear case outlined as to how that amendment might be useful and might tighten the legislation.
 I shall direct most of my remarks to amendment No. 37. The Under-Secretary gave the lie to her statements when she said that we have already been tested. I would be fascinated to know when we were tested. Certainly, we have been tested by the Irish Republican Army for 30-odd years and we have been tested while our intelligence services demonstrated excellence in interdicting, in the main, Islamist fundamentalist terrorists, but we have not been tested in the traumatic way in which the Americans were tested. Is that not the point of the Bill? Is it not the point of the powers that, for once, the Government are trying to be proactive, do something before the worst happens and put powers in place before we have the emergency visited on us? It is simply wrong for the Under-Secretary to say that we have already been tested; we have not. 
 When previous Governments thought that we might be tested along such lines, their response was wholly different. Before the second world war, it became clear that weapons of mass destruction might be used against these isles. Therefore, a Department with responsibility for civil defence sprang into being, with a single Minister in charge of it. Interestingly, the American response to traumatic incident was to create something similar—a Department of Homeland Security, with a single figure in charge of it. 
 The fact that the Under-Secretary had to illuminate the matter by telling us the number of people who might be required to give us an answer in the event of such an emergency is extremely worrying. One of the 
 Ministers to whom she referred is the Minister in charge of counter-terrorism, yet interestingly, when we had a problem with terrorism on the airlines during the Christmas period, the Secretary of State for Transport, not that Minister, spoke about sky marshals. 
 Does not that make the point—I firmly and honestly believe this—that the Government are happy to jog along complacently with these impractical measures, despite the fact that we have before us an extremely practical Bill? I believe, hope and pray that the Bill will be extremely practical, but my hon. Friend the Member for North-East Hertfordshire has mentioned the Government's disjointed approach in respect of the Phillis report, and, as we have said before, Project Unicorn points to the lack of cohesion between central Government and the private sector. The Government are happy to sit in complacency and try to cope with those problems, hoping and praying that a traumatic incident of the sort that forced America to go down this line will not happen here. 
 I fully recognise from the Under-Secretary's comments that it is most unlikely that we will make any progress on the matter. I hope that it will not take an incident of the style and shape of 11 September to create a difference in the Government's approach to the problem. I hope also that it will not take 2,000 people being killed for the Government to realise that this part of the Bill is wrong. Despite those comments, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Richard Allan: I beg to move amendment No. 97, in
clause 19, page 13, line 10, at end insert—
 '(v) is satisfied that the regulations are compatible with the provisions of the Human Rights Act 1998'.

Joe Benton: With this it will be convenient to discuss amendment No. 109, in
clause 22, page 15, line 31, at end insert— 
 '(c) require a person to act in breach of human rights provided for by the Human Rights Act 1998.'.

Richard Allan: This is another important area—the relationship between the Bill and the Human Rights Act 1998 was discussed extensively during the proceedings of the Joint Committee. Liberal Democrat Members have been very supportive of the Human Rights Act. We were pleased to see it incorporated in UK law, and we want to ensure that any subsequent legislation is fully compatible with it.
 The scope of the Bill in terms of the provisions that can be brought into play through emergency regulations, which we will discuss when we come to clause 21, covers many situations in which human rights could be infringed. Therefore, we felt it more important than ever that the Bill explicitly tie itself to operating within the framework of the Human Rights Act. 
 Let us consider in particular the Joint Committee's deliberations and the Government's response. Interference with property rights without compensation, which we will come to later, is a classic area about which the Committee expressed concern. 
 The Government's response was very clear: citizens are safeguarded by the fact that any regulations must be compatible with their rights under the European convention on human rights. In other words, when the Committee raised queries about such areas, the Government cited compatibility with the convention as the primary safeguard for the citizen. 
 The Joint Committee went further and considered many different questions, some of which have been resolved. The Government made significant concessions by agreeing that the regulations would not be introduced as secondary legislation. That is a very important constitutional point, in that Parliament retains the power to make primary legislation that is incompatible with the convention, but does not delegate to the Executive the power to make incompatible secondary legislation. That is an important distinction in terms of parliamentary sovereignty. 
 However, we are still left with some uncertainty about the extent to which a Minister might bring forward incompatible regulations. By seeking to include in the Bill a responsibility in terms of the power—in other words, by hedging the power with an explicit reference to the Human Rights Act—the amendment would ensure that any regulations that were introduced had explicitly to comply with the Human Rights Act from the initial stages. 
 In paragraph 32 of the response to the Joint Committee, the Government have come up with an interesting philosophical argument as to why they rejected any explicit reference to the Human Rights Act. It is worth quoting: 
 ''The Government considers that to make express provision of this kind in this particular Bill would potentially undermine the application of the Human Rights Act. Making express provision in this case might cast doubt on the application of the Human Rights Act to other legislation where no express provision was made. In the light of this, the Government rejects this aspect of the recommendation.'' 
I find that a curious argument: one has to refer to the Human Rights Act either everywhere, if it is to be referred to at all, or nowhere. I fail to see why that argument should necessarily stand up in court. Why should a court strike down one piece of legislation or have a problem with it because another piece of legislation explicitly refers to the Human Rights Act?

Oliver Heald: Does the hon. Gentleman agree that that argument is also completely at odds with the recent case of Thoburn v. Sunderland city council, in which Lord Justice Laws said that the Human Rights Act has a special status as a constitutional enactment and that there is to be no implication of repeal, which means that a future Act could change the law only if it expressly overruled something in the Human Rights Act.

Richard Allan: I am grateful to the hon. Gentleman for that point. It is always helpful to have examples quoted. I am sure that when the Bill reaches another place, this will be one of the areas that learned colleagues up there will go into in considerable depth by citing specific cases. There is clearly some difference of opinion on the extent to which the Government's
 defence holds up. They can say that such a change would somehow cast doubt—that is a strong phrase to use—on compliance regarding other legislation, but I think that that would not be supported by case law.
 On the point about whether the regulations will be compliant and whether Ministers will certificate them as being compliant in the normal manner—all legislation that we consider is effectively certificated by a Minister to say that it is compliant—the Government's response at paragraph 37 is as follows: 
 ''The Government agrees that the Minister responsible for the Parliamentary debate on the regulations in each House should make a statement as to whether he considers that the regulations are compatible with the Convention rights. This reflects the undertaking that the Government have already given to volunteer statements of compatibility in relation to instruments that are subject to the affirmative resolution procedure. The statement will generally be made in the explanatory memorandum which is prepared for the debate or, should the urgency of the matter mean that no explanatory memorandum is available, by the Minister in charge of the debate.'' 
All the way through, the Government have said that their intention would be to introduce only regulations that are compatible with the Human Rights Act, which means the convention but also any derogations from it. Compliance with the Act means compliance with the UK version of the European convention on human rights; it is not a reference to the convention in its entirety. We accept that derogations are made in exceptional circumstances and are perfectly legitimate in UK law. We can argue about whether we approve of them, but they are legitimate. 
 The Government have said that they intend to comply with the Human Rights Act. They have said that they intend to introduce statements of compatibility when the regulations come before Parliament after the specified seven days, or however many days it takes. We feel that it would be more comprehensive, and a strong statement of the Government's intentions, to include at this stage a provision that states that those emergency regulations will be brought forward only if the Government are satisfied that they are compatible with the Human Rights Act. That is a very important safeguard, which the public will be looking for. 
 When we are dealing with exceptional legislation, the process is difficult. We have to consider the matter in the context of all the other powers that exist. The Bill can effectively rip up any other legislation, if that is deemed necessary. In those circumstances, we believe that an exceptional case can be made for the Bill containing such an explicit statement referring to compatibility with the Human Rights Act. I hope that the Minister can at least reiterate the Government's commitment to emergency regulations that are compatible with the Human Rights Act. She may be able to go a little further than the Government have so far in making the matter explicit in the Bill.

Oliver Heald: Amendment No. 109 relates to clause 22 and it would forbid emergency regulations from requiring a person to act in breach of human rights as provided for in the Human Rights Act.
4.30 pm
 Public consultation on the draft Bill showed strong support for emergency regulations to be treated as primary legislation for the purposes of the Human Rights Act, but the Government in their response decided against it. Perhaps they believe that it would be the wrong way to provide for accountability. Many organisations, such as Network Rail, the Association of Chief Police Officers and others, said that, ''As an organisation that has to respond to emergencies, we agree that it is undesirable if emergency regulations are held up by injunctions.'' There was quite a lot of discussion of that sort during the consultation. 
 The Government, in their response to the Joint Committee, explained that they did not agree with the idea of exempting constitutional Acts of Parliament from modification or disapplication under clause 21(3), which we will come to later. That inconsistency has lead the Law Society and others to voice their concern that the European convention on human rights should not be infringed. They would like the Government to explain how they perceive the provision in relation to the 1998 Act. 
 In moving the amendment, which would forbid requiring a person to act in breach of human rights under emergency powers, we are looking for the Minister to set out the Government's approach to the 1998 Act and why they believe it is unnecessary to make more specific provision for it in the Bill. 
 In the recent case of Thoburn v. Sunderland city council, Lord Justice Laws said that the 1998 Act has a special status as a constitutional enactment, that there is no implication of repeal to be taken from a later Act and that explicit provision would have to be made for a repeal or partial repeal to occur. In those circumstances, it is hard to see how the Government can continue to say that, ''If we were to say something explicit in the Bill, in later Bills we would have to say the same thing.'' Why?

Elfyn Llwyd: I, too, am concerned about that area of the Bill. Every Bill that we discuss in Parliament includes the section 19 certificate. Several certificates have been challenged, and some successfully of late, so we cannot read too much into them. The challenges may be for the best of reasons, but it does not allay the fears of many groups dealing with civil liberties and many people in Parliament.

Richard Allan: The hon. Gentleman makes the point about groups dealing with civil liberties that have made strong representations. Liberty and Justice submitted many comments on that area of the Bill, but they had difficulty doing so because the Committee website listed the dates for discussion of various provisions incorrectly. Information has been submitted on the area under discussion.

Elfyn Llwyd: I was aware of that. We must be careful when considering the types of actions—the scope of the regulations under clause 21—that can be taken. Clause 19 deals with the powers, but we must consider their scope as well. Clause 21(3)(b) to (e), (g) and (h) could all breach human rights—again, probably with
 good reason. For example, the confiscation of property with or without compensation, the destruction of property, animal life or plant life with or without compensation, and the prohibition of freedom of movement are all important matters, which many of us feel are constitutionally part of our everyday civic rights.
 Paragraph (j) is an interesting provision to 
''disapply or modify an enactment (other than a provision of this Part) or a provision made under or by virtue of an enactment''. 
Much has been said about whether that gives the Government authority to disapply the Human Rights Act. It is perfectly possible to use that paragraph to disapply the Human Rights Act. Any lawyer with even a sketchy knowledge of human rights would say that that is true. It is true. It may never become the intention of this or any other Government, but it is there. The paragraph uses the term ''an enactment''. 
 Then we have the apologia on behalf of the Government from the parliamentary counsel, whose ears must have been itching a bit on Second Reading. Before I deal with the parliamentary counsel, I should say that the Joint Committee, a Committee of both Houses, heard a great deal of evidence from Liberty, various civil rights groups and others, people not always taken with civil rights issues, who felt some alarm about paragraph (j). It said: 
''In the wrong hands, this''— 
that is paragraph (j)— 
''could be used to remove all past legislation which makes up the statutory patchwork of the British constitution.'' 
I suggest that the Government think again about the clause. Many of us would feel happier if the amendment were included in the Bill, because it would bolster the Government's assurances on Second Reading. 
 The Government have offered the view that Parliament would not permit interference with a constitutional enactment, saying that they 
''cannot envisage any circumstances in which that power would lawfully enable us to make a substantive amendment to a constitutional enactment.''—[Official Report, 19 January 2004; Vol. 416, c. 1113.] 
However, for Parliament to rely merely on the assurances of parliamentary counsel is not, with respect, good enough. If it is wise to give broad powers to cope with unforeseen events, it is also wise to consider the possibility that a future Government may seek to abuse them. Parliament should not rely too much on the predictions of parliamentary counsel as to what it may or may not do in the future. Conversely, and I ask the Under-Secretary to think about this point, if the Government and parliamentary counsel cannot foresee that it would ever be necessary to make substantive amendments to constitutional enactments, they can have no objection to this limitation on the scope of emergency regulations. 
 Amendment No. 97 is a proper amendment. We talked about the triple lock. This is a different assurance, but it is exceedingly important because, even on a cursory reading of clause 21, we find several potential breaches of the Human Rights Act. I ask the 
 Under-Secretary to assure the Committee again that paragraph (j) will not be used to disapply the Human Rights Act and that that Act will loom large throughout the Bill and, in so doing, to consider accepting amendment No. 109.

Fiona Mactaggart: I assure the Committee that we are committed to operating the Bill, and we do not believe that it is possible to do so other than in conformity with the Human Rights Act. For that reason, I recognise the force of amendment No. 97, moved by the hon. Member for Sheffield, Hallam, that a statement of conformity at the point of making regulations could be a useful mechanism to ensure that the intention is fulfilled. In principle, I accept the intention of his amendment, although I would ask him not to press the present formulation. Throughout this process we have made clear our belief that emergency regulations must comply with the Human Rights Act. The Bill already achieves that, but we accept that an explicit statement of this kind will help to make that clearer, and we welcome it.
 That brings me on to the reasons for resisting the other amendment. I think these two matters do go together—we are resisting specific statements of this kind. We entirely agree that emergency regulations should not require other people—such as the police or armed forces—to perform acts incompatible with the Human Rights Act. However, the Human Rights Act does not just apply to actions taken by the public authorities themselves, it applies to actions that a public authority requires another person to do. It already prevents regulations being used to require another person to do something which breaches convention rights, and it is unnecessary to restate this on the face of the Bill in the way that this amendment seeks. 
 The hon. Member for Meirionnydd Nant Conwy raised the question of whether the Bill could be used to amend the Human Rights Act. He will have seen the letter on the Human Rights Act circulated by my hon. Friend the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster in the pack that he received earlier today. Our view is that this is not possible, and that the Bill must always be read in the framework of the constitution. Were we to read this Bill in isolation, were there no such thing as the Human Rights Act, it is possible that the provisions cited by the hon. Gentleman could be operated in a way that might breach the Human Rights Act. However, it is not possible to assume that the Human Rights Act does not exist—it does, and it is necessary to read this Bill in conjunction with section 6 of that Act, which provides that it is an unlawful act to do any act which is incompatible with the convention rights. An ''act'', for this purpose, includes the making of secondary legislation. We are resisting amendments that seek to restate something that is inherent in legislation. The suggestion made by the hon. Member for Sheffield, Hallam to make that clearer by requiring a statement of conformity is helpful, and re-emphasises the necessity of conformity. However, the 
 other amendment is otiose—a word I was challenged to use earlier, and I have succumbed to that challenge—and we shall continue to resist it.

Michael Trend: I am sorry, I became a bit muddled in the closing passages of the Minister's speech. She has my heartfelt sympathy for her present condition. Was it that she has some sympathy with amendment No. 109, and will look at it again, but has none with amendment No. 97, or the other way round?

Fiona Mactaggart: I realised that I was sinking beneath the waves of coughing, but not that I was becoming so unclear. I have sympathy with the motives of both amendments. I resist amendment No. 109 on the grounds that it is unnecessary to include such a provision because it is inherent in the Bill when read in conjunction with the Human Rights Act. However, although I cannot accept amendment No. 97 as drafted, I accept the intention behind it, which is to require a statement of conformity in such circumstances, and I hope to table a suitable amendment on Report.

Richard Allan: That was an extremely helpful response. We are interested in the point at which the statement comes forward. The Government have fully accepted the principle of a statement coming forward and the Minister's response that they will consider introducing a provision requiring a statement to be made at this stage is precisely what we are looking for, so it would be only sensible to withdraw the amendment as graciously as the Minister responded to it. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Richard Allan: There is an outstanding question to which the Under-Secretary did not respond earlier. I do not want to detain the Committee and this question may be one for a note. The Under-Secretary was asked about the Lords Commissioners, and I am not entirely satisfied as to whom we are talking about in subsection (3). That has not yet been resolved, but a note from the Minister would be acceptable instead of her having to respond to the question now.

Fiona Mactaggart: There are seven Lords Commissioners of the Treasury: my right hon. Friends the Prime Minister and the Chancellor, and my hon. Friends the Members for West Carmarthen and South Pembrokeshire, for Enfield, North, for Halton, for Eastwood and for Nottingham, East.
 Question put and agreed to. 
 Clause 19 ordered to stand part of the Bill. 
Clause 20Conditions for making emergency regulations

Conditions for making emergency regulations

Alistair Carmichael: I beg to move amendment No. 98, in
clause 20, page 13, line 23, leave out paragraph (b).

Joe Benton: With this it will be convenient to discuss amendment No. 99, in
clause 20, page 13, line 31, leave out paragraph (b).

Alistair Carmichael: These two amendments in my name and that of my hon. Friend the Member for Sheffield, Hallam would delete paragraph (b) in subsection (5) and paragraph (b) in subsection (6). The clause as a whole helpfully leaves out the circumstances in which emergency regulations may be made under clause 19. We seek to probe the provision of the extraordinary power in subsections (5)(b) and (6)(b). It is proper and unexceptional that the power should not be exercised unless the existing legislation cannot be relied on without the risk of serious delay. That strikes at the heart of urgency and emergency. Likewise, one can have no objection to the provision that the existing legislation might be insufficiently effective. However, the middle provision, that
''it is not possible without the risk of serious delay to ascertain whether the existing legislation can be relied upon'' 
is curious. 
 As I understand it—perhaps the Under-Secretary will correct me if I am wrong—it is referring to there being no time to find out. I should have thought that the number of lawyers in the Government's ranks, never mind those whom they employ, would have made that unnecessary—I shall not go so far as to say otiose. [Hon. Members: ''Go on.''] I am a moderate man and a cautious lawyer. 
 That strikes at the heart of the matter. I am all for giving the Government powers that are necessary, but I simply do not see any need to encourage laziness.

Elfyn Llwyd: In rising to support the hon. Gentleman, I want to say that I think it is quite remarkable that the paragraph has been included. We have a provision that states:
''the existing legislation cannot be relied upon without the risk of serious delay'', 
and then there is the provision that states: 
''existing legislation might be insufficiently effective.'' 
I really cannot see the excuse for paragraph (b). If it is to stand, and the Government say, ''We can't be bothered to use the Library over there to find out whether there is a provision to help us. We'll carry on regardless, and find out some day that we've brought in legislation that wasn't necessary,'' that is an astonishing state of affairs.

Fiona Mactaggart: The Government cannot support the amendment, but it might help hon. Members if they listened to—I am sorry, that sounds as though I am telling hon. Members off, and I did not mean it that way. The provision covers what would happen if it were not possible to discover for certain whether an existing piece of legislation could be relied on quickly enough in an emergency situation. We are
 talking about extraordinary situations. It is possible that legislation that had been designed for one purpose could properly be used in an emergency situation, but it would not have been used in those circumstances before, because emergencies are emergencies, so there would not be experience of such a use.
 The law is often complex and relevant provisions might be in relatively obscure legislation. The meaning and intent might be subject to differences of interpretation and it might be necessary to seek counsel's opinion to see whether a particular power is sufficient and appropriate to be used in the emergency. In such situations, when lives might be at risk and it is not possible to ascertain with complete certainty whether a piece of legislation will be effective, and when there is not time to seek the views of a higher legal authority, the measure represents an assurance that it is not ultra vires to make a provision that due consideration reveals could have been made under existing legislation. Such measures would not be taken because a Minister was lazy, but because circumstances were extraordinary, and the legislative power in question perhaps had not been used in that way before. 
 The provision ensures that when regulations are made, they are made properly. We may find ourselves in those circumstances, and this is a proper provision to make.

Alistair Carmichael: I have listened carefully to the Under-Secretary's explanation, and I do not think that the situation is any better than it was when I raised my probing amendment. When I made my living from being a lawyer, and sat in my wee office in Macduff, or occasionally in Buckie, and I came across a legal problem that I did not know the answer to, sometimes it was a day or two before I could get back to a client. The Under-Secretary and her colleagues in Government have rather more substantial resources at their disposal than I ever had in my wee office in Macduff or Buckie. I cannot believe that the ranks of Government lawyers who will be employed in the drafting of the emergency regulation could not apply their mind for a second or two to whether the existing legislation was fit for purpose. It seems that the real point at issue is ensuring that the Minister's back is covered and that, as a result, we risk having duplication of effort and legislation, which ultimately would be undesirable.
 I said initially that this is a probing amendment. Our probing has not elicited any great comfort, but I reserve the right to return to the matter at a later stage and, accordingly, do not intend to press it to a vote. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Patrick Mercer: I beg to move amendment No. 85, in
clause 20, page 13, line 34, at end add—
 '(7) The fourth condition is that subject to the conditions appertaining at that time the public be informed at the earliest possible opportunity of the type of emergency, the steps taken to mitigate its effect and its likely duration and the area affected by the emergency.'.
 The amendment seeks to include a practical element alongside the other conditions for making an emergency regulation that are specified in clause 20. It makes it clear that we are looking for a fourth condition. It is intended purely and simply to probe the Government about how far they intend to take clause 20, with a view to making their actions not secretive but completely open and to align them with making information public before, during and after an incident. 
 Let me give an illustration. The powers in the Bill are predicated on the worst possible event, which, as we have already heard, could be some form of traumatic assault, be it by disease, weapon or natural disaster. Clearly, all of those would cause conditions such as have probably never been experienced in this country. 
 The amendment seeks to ensure that people understand precisely what has happened. What would be the benefits of that? If, for instance, there were a dirty bomb in Cornwall, which is a reasonably discrete part of the British isles, how much sense would there be in broadcasting the fact that that attack had occurred?

Richard Allan: I wonder whether the hon. Gentleman is party politically motivated. His dirty bombs always go off in Liberal Democrat areas. It was Liverpool last time, and now it is Cornwall.

Patrick Mercer: I shall try in future to be a little more generous in deciding where my dirty bombs are likely to explode. I used Cornwall for the obvious reason that it is discrete from the rest of the UK.
 In the event of a device exploding in Cornwall, to what temptations might the Government be open? It is possible that they might wish to be secretive about the event and not inform the rest of the nation about what had happened. They might hope that by keeping the event reasonably secret, by keeping to a level of security, they might avoid panic spreading to the rest of the country. 
 The Minister and, in the past, her colleagues have made the point clearly that Government strategy rests on not doing the terrorists' job for them by scaring the pants off the public, by showing the whole gamut of horror that might result from such an attack. I do not agree with that position, but I understand it. There is a certain sense in it. If one wishes to live in a free society and to try to make terrorism less effective, there is an argument for not broadcasting what the terrorist can do to people should because it will alarm them unnecessarily. 
 I do not believe that argument; the contrary argument is that knowledge and understanding dispel fear. In a particular event, the public should be told as soon as reasonably possible. They should be told, provided that they have been alerted to the dangers beforehand and, to refer to what was said in an earlier sitting, they have been trained in how to deal with the 
 particular exigencies. If that does not happen, I can begin to understand why the Government might wish to be less open about the event. 
 The Government must understand that it is highly likely—as we saw after the events of 11 September—that other attacks would follow hard on the heels of the first. After 11 September, one attack was quickly followed by another. A series of attacks then occurred around the world, which have been less well publicised. In particular, there was an attack on a French chemical plant in Toulouse on 13 September. It was not widely acknowledged as an al-Qaeda attack, but it was part of the series of attacks that had been planned, starting in America and spreading worldwide. 
 Were we to agree to the amendment, it would be clear to the public that had an explosion occurred in one or another part of the country—Orpington, let us say—

John Horam: Thank you.

Patrick Mercer: My pleasure. If an explosion occurred in one part of the country, other areas would be aware of that and alert to the possibility of an attack. I underline that information on such an emergency should be broadcast to the public at the earliest possible opportunity.
 The steps taken to mitigate the effects of the emergency should also be made clear. Returning to the analogy of the dirty bomb, decontamination would need to start immediately within the area where the device has exploded. People would have to be aware that emergency powers had been put in place. There might be a cordon of armed police and soldiers who may, in certain circumstances, be allowed to open fire on people trying to escape the contaminated area. 
 By broadcasting the effects of an attack, the people who are in the downwind plume—the hazardous area where contamination might spread—would be alerted to what had been done and what was likely to be done. It is possible that, if the wind were in the west, areas west of the bomb would in due course feel its effect. The public would need to know what had happened, what type of emergency it was and what was being done about it. Broadcasting the estimated duration of the crisis would be extremely effective in dispelling fear. People should be told what was likely to happen.

John Horam: I have no wish to subvert my hon. Friend's argument, but the need to explain matters to the public, which might be accelerated by his amendment, could adversely affect the decision on the type of reaction that the Government have in mind. It is often the case that the press get wind of something, even if it is not something overt such as a sudden attack but the intelligence service believing that something is about to happen. There might be a scare such as the one over BSE, for example. The Daily Mirror got wind of that and put pressure on the Government to make an announcement about it. The fact that the Government had to make an announcement, because there was already something in the public domain, had a destabilising effect on what they eventually decided
 to do. They had to decide more rapidly than they would otherwise have done. Of course, they felt under pressure to reassure the public in some way.
 There is a problem here and it involves the educative process. Any Government are concerned to reassure the public and to get across the exact degree of risk and danger involved. At the same time, they have to act very fast.

Joe Benton: Order. That was a somewhat lengthy intervention.

John Horam: My hon. Friend has the gist.

Patrick Mercer: I have indeed got the gist and I am grateful to my hon. Friend for that point. If I may digress, it is a moot point whether the lessons of the foot and mouth crisis of 1967 or 1969, or at the end of the 1960s, were learned.

Joe Benton: Order. Remarks must be addressed through the Chair.

Patrick Mercer: Forgive me, Mr. Benton. I do not know whether you can help me about whether the foot and mouth crisis was at the end of the 1960s, but let us say that it was. [Interruption.] I am now told that it was in 1966.
 If the effects of that incident had been remembered, if the physical measures that were taken to mitigate the effects of foot and mouth disease at the time had been brought to mind and if farmers and other agricultural workers had been reminded of the dangers and had been trained in how to mitigate against them, perhaps the alarm and despondency that spread—due, as my hon. Friend the Member for Orpington suggests, largely to the efforts of the press—might have been reduced. That underlines the point that I am trying to make. 
 The amendment would seek to build on the effects of training and warning people beforehand. It would create a fourth condition, which should, combined with the points that I have made, ensure that the effects of the incident are understood, that fear is dispelled and that action to mitigate the effects of the incident can be taken more quickly. 
 That has been done before. In the late 1980s, it became clear that the IRA's tactics were changing dramatically. It had realised that the effects of the bombing campaign against the mainland meant that it made much more sense to hit commercial targets, in, say, the City of London, rather than kill the odd policemen or soldier in the Province of Northern Ireland. When it became clear that the tactics were changing to that end, the Metropolitan police introduced a programme of public information. People were trained and told what to expect and, as a result, every person who was likely to be a victim became alert to the danger and became an intelligence receptor. It was clear that that helped to allay fears. It was also clear that the IRA found it much more difficult to operate in those conditions than it might have done otherwise. 
 I appreciate that the amendment is trying to address a host of different contingencies. We are not talking simply about the far end of the spectrum. The examples that my hon. Friend mentioned about BSE and the foot and mouth crisis make the point well. I hope that the amendment is accepted, because it would make the clause much more practical than it is at the moment.

Richard Allan: I hope that the Committee will forgive me for dwelling on a word, because amendments to Bills are all about words. When I read the amendment, the word ''appertaining'' leapt out at me and I was curious about it. I looked it up in my online dictionary. Appertaining means
''belonging to or part of''. 
I think that the word here should be prevailing. That point should assist the hon. Member for Newark, because, on this occasion, I thought that the use of a word was not entirely correct. 
 On the substance of the amendment and the point about information, we have diverged throughout our discussions. The hon. Gentleman is in favour of providing more information more frequently than I would be. I fully recognise the information function, but there is a dividing line between calming fear and creating fear. We have talked about this throughout our discussions, and about the extent to which the provision of extra information, such as the ''Protect and Survive'' booklets, calms or creates fear. I am of the school that believes that such booklets created more fear than they calmed. However, I understand the rationale behind the amendment in these circumstances.

Patrick Mercer: The ''Protect and Survive'' booklet was, mercifully, never put to the test. That great, terrible incident never actually came upon us. It is, therefore, a difficult lesson to draw, because one cannot say, ''This booklet was extremely useful when we had this frightful event.'' The event did not take place, so it is slightly unfair to come to a judgment.

Richard Allan: We could deem the booklets to be a perfect success—here we are, and not a single person was killed by a nuclear explosion in the United Kingdom in the last 50 years. Therefore the success rate was 100 per cent. I think we all agree that information is essential—the central point about the information provision in the hon. Gentleman's amendment is when and how much information should be given. That is a valid issue and I am pleased that he has raised the amendment at this point—I was trying to be supportive while being nit-picking about the words at the same time.
 It is a useful debate, and information provision at the time when regulations are put into force will be important, not necessarily because of a need to inform people as to how they should deal with the incident, but to explain to the public why emergency regulations, and not any other measure, have been brought into force. There is, again, the constitutional point to which we keep referring—if we are to bring 
 into place emergency regulations, there is a selling job to be done, particularly if Opposition parties are, as they may well be, leaping up and down and saying that the emergency regulations are an abuse of power. Under those circumstances, information provision as to the circumstances behind the particular regulations and the justification for them would be entirely valid. The phrasing of the amendment can, to a degree, incorporate such information provision.

Michael Trend: I go further than that. I have not been party to earlier discussions about calming or creating fear. My general view is that fear is caused by ignorance, and the best way to dispel it is to be as open and honest as one can be with the people of this country.
 This Bill would place enormous powers—in many cases, it confirms existing powers, but some are new—in the hands of the Government. There is a natural suspicion among a large part of the population that the Government are not straight in emergencies. If one thinks back to the civil defence days, there was a whole range of black-and-white films, in which suspicious-looking men in bowler hats from Whitehall were up to no good or kept the secret of the phial of deadly germs from each other, as well as from the general public. There is a problem of communication and, with such massive powers in the hands of Government, I see no objection to there being written into the Bill an obligation for the Government to communicate. Indeed, from my work on the Public Administration Committee, from my reading of the Phillis report, and from the enactment, sooner or later, of the Freedom of Information Act 2000, it seems that we are moving in that direction. Governments should be more open, and if they are not, they will increasingly be forced to be more open. Obligations to communicate will become established in custom, if not in legislation. I do not see the problem with including some obligation to communicate, or at least to define the areas and circumstances in which the Government would communicate. 
 If the Government are reluctant to accept this amendment—I rather suspect that they are—would the Under-Secretary turn her mind to how Government communications would work at the time of a particular crisis? Several scenarios have been put before the Committee, and I do not wish to add to them, but it has been suggested that it is difficult for the Government to know how much to say and when to say it. However, it is surely right for them to work on the assumption that they need to communicate. Is the Government Information and Communication Service, which may be in the process of reform, also part of the preparations for coping with a civil contingency on the scale envisaged in the Bill? Are plans in place for people to take certain responsibilities and is there a clear line of command to pass information down to those who have to communicate it? The style in which information is communicated is important, because we do not want to create greater despondency, despair or anxiety than is necessary. In 
 other words, a great deal of thinking must take place about the way in which communication takes place before, or if, an awful event occurs.

Fiona Mactaggart: As hon. Members suspected, we cannot accept the amendment. Speaking as a Member to whom friendly bombs are more common than dirty bombs, I have found much of the debate interesting. It has given us an important opportunity, as the hon. Member for Windsor requested, to gain a better understanding of how communications will work in an emergency. This is a point to which the hon. Member for Newark returns, and he rightly recognises the fact that to maintain the United Kingdom's resilience in an emergency it is crucial to have clear methods of communication to inform people of the most sensible things to do.
 I assure the Committee that the Government will use every reasonable measure to ensure that the public are aware of the situation, if emergency powers are used. Clear and accurate information will be given about the effects of emergency regulations and the reasons for their use, because that is what people want know. 
 The hon. Member for Windsor asked what arrangements would be in place. They are well established. We have arrangements with the BBC and other broadcasters to ensure that, in the event of an incident, we can get the right information to those who need it, when they need it. Clearly, declaring an emergency would be regarded as a major news item and it would be covered as such, but broadcasters would want to explain why it was necessary and what the consequences would be. The Government have a clear strategy in place to ensure that the information is available to broadcasters.

Patrick Mercer: I am grateful to the Under-Secretary for her forbearance and generosity. For the record, can she make it clear whether this system of information comes into play before the incident or only when it has occurred? I recognise that burgeoning intelligence might make an incident imminent, but do the Government intend to inform, train and make people understand what the problems might be before the incident or only when it has occurred?

Fiona Mactaggart: There is no such thing as a standard incident. That is part of the point of having emergency regulations. There may be circumstances in which it is proper to alert people before the incident. Members of the Committee have jokingly referred to the ''Protect and Survive'' booklet. I think that fun was poked at it because of the feeling that it was plonked on the nation without a context. Therefore, in its way it illustrates powerfully the fact that necessary and appropriate information that predates an incident must arrive in a context.
 When I was teaching people to be teachers, I used to say, ''Children will only learn it if they are ready to receive what you are teaching them. They need the right books in their head to understand what you are trying to communicate.'' In practice the same is true of 
 the public. If people feel that the information offered by the Government is relevant and that it connects to an experience that they are expecting or about which they are anxious, the Government might properly provide such information beforehand. The UK Resilience website contains general information to assist people in any emergency, such as having a torch at home, but often prior information must be properly tailored to the situation. 
 If emergency regulations were made, the Government's news co-ordination centre would provide information through all the media for the general public. It would refer to the terms of those regulations and their implications, as would the UK Resilience website, ensuring that people had the information they required. Part 1 requires responders to make arrangements to warn the public and to provide them with information and advice if an emergency occurs or is likely to occur. Therefore, public information is available at a series of levels. The national news co-ordination centre will have information about the fact of the emergency and what is required, and local responders will provide information about what people might do. We hope that those two sources will provide appropriate information in the most useful way to enable people not only to protect themselves, but to be aware of the measures that the Government are taking for their protection.

John Horam: I am sorry to make further remarks about what the Under-Secretary said because I know that she is suffering with a severe cold. The measures that she outlined contain two elements—national, through the news co-ordination centre, and local. Is there room for an independent element?
 Governments know that their information is often received with a certain scepticism. To deal with that, it may be sensible for the Government's consultations and arrangements to contain an independent element, whether it is business, trade unions or an independent personage such as a judge, which can be involved in framing the public communication and be acknowledged by the Government as being there. That would reassure the public that the Government are not simply, of their own volition, making a statement about a possible emergency, but have taken the trouble to consult a slightly wider group of people, who agree that the emergency exists and that the Government are right to inform the public in the way that they are doing. I hope that my point is reasonably understandable. This is an element that any Government should address these days.

Fiona Mactaggart: I understand the hon. Gentleman's point. That element of independence will be provided by our media—we do not have a Government proclamation. The British media are, rightly, sceptical, so the challenge will lie in the means of communication. To build trust in the Government's communication, will we require a further imprimatur?
 We are talking about an emergency, in which the most important thing is to make necessary and proportionate regulations, but the Government must 
 communicate that. Therefore, adding extra layers to the communication is not useful; it must simply say why the situation is an emergency, what the necessary powers are, why they are proportionate and what people can do. There will be plenty of opportunity for various experts to offer comment and a critique, and the Government will have to defend their actions robustly on the grounds that they are right and necessary in the circumstances.

Patrick Mercer: I am grateful to the Under-Secretary for her clear outline and gracious rebuttal of the points that other hon. Members and I have made. She stated clearly that the public must perceive the threat as credible and that the Government's response to it must be tailored accordingly. That is reasonable and practical.
 I have mentioned how the Government have handled other threats looming large against this country. It is tempting to say that we stand on the edge of a cataclysm. With the discovery today of what seems to be ricin in one of the American Government Departments, it seems that weapons of mass destruction may be used against undefended members of the public. It is worth remembering that at this time last year, almost to the day, there was an attempt to deploy ricin against the Jewish community in north London. 
 If that had happened, the population there would have been wholly unprepared for the attack. I have mentioned that the Government are willing to get involved in campaigns such as Firewatch, in which children are trained to deal with situations that do not, but could, happen every day. I absolutely accept the Under-Secretary's point that the fear of burning chip 
 oil spilling over a child on the Hawtonville estate in Newark is much more credible than the fear of a ricin weapon. 
 It is my firm belief that, as the war on terror continues to spread—not necessarily to increase but to diversify—we must start educating and training before an incident rather than afterwards. I take the Under-Secretary's points, which she makes fairly, but I hope for the sake of the public, who may not be attuned to accepting my warnings, that that state of affairs will not continue ad infinitum and that the only time we have to warn, deal with and treat them is before an event rather than afterwards. In the light of those points, I reluctantly beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Richard Allan: I shall be brief. Clause 20 is important, in that it is part of the triple lock. To say something nice in closing, it is the bit that looks most like a lock. The way that the first, second and third conditions have been drafted in subsections (2), (3) and (4) is great. This is a congratulatory note for the Government, because this part of the Bill, despite the strictures that my colleague mentioned earlier, is generally well drafted.
 Question put and agreed to. 
 Clause 20 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Ms Prentice.] 
Adjourned accordingly at twenty-nine minutes past Five o'clock till Thursday 5 February at half-past Two o'clock.